#### Edward F. Anderson *et al.,*Executors and Trustees, App’lts, *v.*William J. Hamilton, Assignee, Resp’t.

*(New York Common Pleas, General Term,*

*Filed February 10, 1890.)*

Assignment for creditors—Lease—When assignee not liable for rent.

A general assignment was made January 5, which included a lease of the premises where the assignor’s business was carried on, the rent of which fell due January 1. *Held,*that the assignee could not he compelled to pay/for occupation during January, rent at the rate reserved in the-lease; that such rent was provable as a claim against the estate.

Appeal from judgment of the general term of the city court of New York, affirming decision and judgment dismissing complaint.

Action brought against defendant as assignee for creditors of Yukuro Niwa, otherwise Nippon Mercantile Company, for rent of premises occupied by defendant.

*G. S. P.*Stillman, for app’lts; *George S.*Coleman, for resp’t.

Larremore, Oh. J.

Defendant’s assignor was lessee of premises 47 Barclay street from plaintiffs, under a written lease requiring payment of rent in monthly installments in advance. The assignment was made on January 5,1889, and defendant qualified as assignee January 15th. No rent has been paid for the month of January, 1889, which fell due January 1st. The present action is brought to compel defendant to pay such rent for January, or at least from January 5th, when the assignment was made. It appears that defendant occupied the premises during January, and used them in carrying on the business of his trust.

The assignment in question, under its general clauses, transferred and set over the lease of the premises to the assignee as an asset. The assignee therefore became vested with the lease, entitled to its privileges and liable on its covenants. There was no covenant requiring him to pay rent for January. The January rent became due on January 1st, while the assignor was still the lessee. Consequently the assignor became liable for the January rent, and the amount of it is provable as a claim against the assigned estate. The fatal difficulty of plaintiff’s attempt to make the assignee pay for use and occupation during January, at the-*713rate of the rent reserved in the lease, is that such claim for use and occupation is inconsistent with the continued existence of the lease. The lease, together with the possession, passed to the assignee, and his possession continued under the lease. Of course, plaintiff had the option of annulling the lease at any time by dispossess proceedings, but as these were not instituted and the lease was not cancelled or surrendered, the same remained alive and operative during January; the rights and duties of all parties are prescribed by it. Substantially the above view has been taken by very respectable authorities. *Pihemayer*v. *Walsh,*2 City Ct., 244; Bishop on Insolvent Debtors, 330.

It seems to me, also, that the practical result reached by the above reasoning from abstract legal principles is just, and in accord with common sense. There is no good reason why the landlord’s claim for the month’s rent should always be made a preferred one, which would be the real effect accomplished by holding the assignee personally liable. There is no hardship in compelling the lessor to come in with the other contract creditors as to any rent due when the assignment is made. As for rent subsequently to accrue, the summary process of ejectment enables the owner either to bring the assignee to his terms, or to promptly repossess himself of his premises.

The judgment appealed from should be affirmed, with costs.

Bischoff, J., concurs.